IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

:

TONYA M. BAKER, : CIVIL ACTION

:

Plaintiff, :

:

v. : No. 05-4385

:

JOANNE B. BARNHART, :

Commissioner of the :

Social Security Administration, :

:

Defendant. :

 :

MEMORANDUM

ROBERT F. KELLY, Sr. J. JUNE 21, 2006

Plaintiff Tonya M. Baker (“Baker”) brought this action under 42 U.S.C. § 405(g) to

review the decision of the Commissioner of Social Security Administration (“Commissioner”)

denying her claim for Disability Insurance Benefits (“DIB”). Baker claims she is disabled. The

parties filed Cross-Motions for Summary Judgment which were referred to United States

Magistrate Judge Peter R. Scuderi for a report and recommendation. Magistrate Judge Scuderi

recommended that Baker’s motion for summary judgment be denied; the Commissioner’s motion

for summary judgment be granted; and the final decision of the Commissioner be affirmed. 

Baker filed Objections to the Report and Recommendation. For the reasons stated below, the

Report and Recommendation is rejected in part, the Commissioner’s motion is denied, Baker’s

motion is granted insofar as she requests a remand, and the case is remanded to the

Commissioner for further proceedings consistent with this Memorandum. 

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I. BACKGROUND

The background is set forth in detail in Magistrate Judge Scuderi’s Report and

Recommendation dated April 28, 2006, and will be repeated in this Memorandum only where it

is necessary to address the issues presented. Baker applied for benefits on September 28, 2003,

alleging disability since August 26, 2003 due to sinus tachycardia, back pain, and polycystic

ovary syndrome. (Tr. 48-51, 57). The state agency denied her application. An administrative

law judge (“ALJ”) held a hearing on June 16, 2004 where Baker was represented by nonattorney, Toby Lopez. (Tr. 45, 264-311). On September 24, 2004, the ALJ issued a decision

denying Baker’s application. (Tr. 16-28). Baker requested review by the Appeals Council,

which was denied on June 22, 2005. (Tr. 5-8). Therefore, the ALJ’s September 24, 2004

decision is the final decision of the Commissioner. Baker then properly commenced this action

seeking judicial review of the Commissioner’s decision. 

II. LEGAL STANDARDS

My role is to determine whether the Commissioner’s decision is supported by substantial

evidence. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Newhouse v. Heckler, 753 F.2d 283,

285 (3d Cir. 1985). Substantial evidence is defined as “more than a mere scintilla but may be

somewhat less than a preponderance of the evidence.” Rutherford v. Barnhart, 399 F.3d 546,

552 (3d Cir. 2005). Substantial evidence represents “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971); see also Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). I may not weigh the

evidence or substitute my own conclusions for that of the ALJ, however, I must remain mindful

that “leniency [should] be shown in establishing claimant’s disability.” Burns v. Barnhart, 312

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 Regulation 20 C.F.R. § 404.1572 defines substantial gainful activity as follows: Substantial gainful

activity is work activity that is both substantial and gainful: (a) Substantial work activity is work activity that

involves doing significant physical or mental activities. Work may be substantial even if it is done on a part-time

basis or if you do less, get paid less, or have less responsibility than when you worked before; (b) Gainful work

activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done

for pay or profit, whether or not a profit is realized.

3

F.3d 113, 118 (3d Cir. 2002); Reefer, 326 F.3d at 379.

I may make a de novo determination of those portions of Magistrate Judge Scuderi’s well

reasoned Report and Recommendation to which Baker’s objections were made. 28 U.S.C. §

636(b)(1)(C). I may “accept, reject or modify, in whole or in part, the [magistrate judge’s]

findings or recommendations.” Brophy v. Halter, 153 F. Supp. 2d 667, 669 (E.D. Pa. 2001).

To prove a disability, Baker must demonstrate an “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).1 Baker

would be considered unable to engage in any substantial gainful activity “if his physical or

mental impairment or impairments are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education, and work experience, engage in any

other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §

423(d)(2)(A); Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). The ALJ applied a five-step

sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520 in determining that Baker was

not disabled under the regulations. The five-step sequential evaluation process is: 

1. If the claimant is doing substantial gainful activity, he is not disabled. If the

claimant is found not to be engaged in substantial gainful activity, proceed to Step

2. 20 C.F.R. §§ 404.1520(b), 416.920(b).

2. The claimant’s impairment(s) must be “severe,” meet the duration requirement

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in 20 C.F.R. §§ 404.1509, 416.909, and significantly limit his physical or mental

ability to do basic work activities before a finding of disabled is directed. If the

claimant has a severe impairment(s), proceed to Step 3. 20 C.F.R. §§

404.1520(c), 416.920(c).

3. If the claimant has a severe impairment(s) that has lasted or is expected to last

for a continuous period of at least twelve months, and the severe impairment(s) is

listed in Appendix 1 of Subpart P of Part 404 of 20 C.F.R. or is equal to a listed

impairment(s), the claimant is presumed disabled without further inquiry. 20

C.F.R. §§ 404.1520(d), 416.920(d). 

4. If the claimant retains a residual functional capacity to do his past relevant

work, he is not disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e).

5. The inquiry at this step is whether the claimant can do other work that exists in

significant numbers in the national economy that accommodates his residual

functional capacity and vocational factors. 20 C.F.R. §§ 404.1520(g), 416.920(g).

Burley v. Barnhart, No. 04-4568, 2005 U.S. Dist. LEXIS 19803, at *9 n.6 (E.D. Pa. Sept. 9,

2005). 

III. DISCUSSION

The sole issue I shall address is whether the ALJ failed to properly consider Baker’s

migraine headaches in combination with her other claims at step two of the five-step evaluation

process. Based on the following analysis, I find that this case must be remanded in order to

properly consider Baker’s migraine headaches in combination with her other claims. 

The Magistrate Judge’s Report and Recommendation correctly identifies the function of

step two and procedures the ALJ must follow when considering a claimant’s impairments: 

Step two (2) of the sequential evaluation is known as the “severity regulation”

because it focuses on whether the claimant is suffering from a severe impairment. 

20 C.F.R. § 404.1520. An impairment is severe if it is “of magnitude sufficient to

limit significantly the individual’s ability to do basic work activities.” Santise v.

Schweiker, 676 F.2d 925, 927 (3d Cir. 1982); see also 20 C.F.R. § 404.1521(a);

S.S.R. 96-3p, “Considering Allegations of Pain and Other Symptoms in

Determining Whether a Medically Determinable Impairment is Severe.” Basic

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work activities are defined in the regulations as “the abilities and aptitudes

necessary to do most jobs.” 20 C.F.R. § 404.1521(b). A non-severe impairment

is a “slight abnormality” which had a minimal effect on the individual such that it

would not be expected to interfere with the individual’s ability to work,

irrespective of age, education, or work experience. Bowen v. Yuckert, 482 U.S.

137, 149-151 (1987). The burden to show a medically determinable impairment

is on the claimant. Id. at 146.

(See Report and Recommendation at 14-15, (Apr. 28, 2006)). Step two has also been described

as “a threshold inquiry” and that the second step “only allows claims that are based upon the

most trivial claims to be rejected.” Harper v. Sullivan, Civ. A. No. 89-4272, 1991 U.S. Dist

LEXIS 2168, at *13 (E.D. Pa. Feb. 22, 1991). “[A]n impairment is found not severe when the

medical evidence establishes only a slight abnormality or combination of slight abnormalities

which would have no more than a minimal effect on an individual’s ability to work.” Id. at *11. 

The ALJ gave only a cursory recognition of Baker’s migraine headaches. The first page

of the ALJ’s decision mentions migraine headaches as an alleged impairment. (Tr. 19). 

However, when listing the severe impairments for the step two analysis, the ALJ ignores Baker’s

migraine headaches, instead listing “asthma, back pain, a history of rapid heartbeat/tachycardia, a

history of [gastroesophageal reflux disease], otalgia/vertigo, [and] polycystic ovarian syndrome”

as “impairments that cause significant vocationally relevant limitations.” (Tr. 20). The only

other mention of headaches in the remainder of the ALJ’s decision is on page three. (Tr. 21). 

Page three’s reference of headaches first highlights the December 30, 2003 report (Tr. 209-211)

of neurologist David Dougherty, M.D., who focused on Baker’s back pain by stating that, “she

reported that the leg and back pain continued and that she had had to stop physical therapy

because she had developed headaches.” (Tr. 21). Page three’s second reference to headaches

mentions that, “Melvin Twersky, D.O., her primary care physician, treated her complaints of

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headaches.” (Id.). Neither of these references discuss whether Baker’s migraine headaches

constituted severe impairments for step two purposes. 

Although the ALJ paid scant attention to Baker’s headaches, Baker’s medical record

contains multiple references to her suffering from headaches. On December 3, 2003, Dr.

Twersky’s treatment records indicate that Baker was suffering from headaches and that she was

“not able to take therapy because of dizzy spell and headaches.” (Tr. 194). On December 30,

2003, Dr. Dougherty’s report discussed Baker’s headaches extensively. He noted that Baker’s

current headaches started three months prior to his examination and that Baker reported a history

of migraines since age 12. Furthermore, Dr. Dougherty acknowledged that Baker has a

predisposition to migraines and that her headaches occurred “on a daily basis with minimal

benefit from Tylenol P.M., Celebrex, and other NSAIDs.” (Tr. 211). A week later, on January 7,

2004, Ganesan Murali, M.D., noted that Baker was taking Verapamil for “migraine and rapid

heart beat.” (Tr. 190). Two weeks later, on January 21, 2004, Dr. Twersky’s treatment notes

appear to reference “cephalalgia,” a medical term for headaches. (Tr. 193). Dr. Twersky’s

January 21, 2004 notes also appear to reference Relpax, a medication for the acute treatment of

migraines. (Tr. 193). On February 2, 2004, Dr. Twersky’s treatment notes indicate that Baker

was suffering from migraine headaches and appear to indicate that Verapamil was prescribed. 

(Tr. 192). Also on February 2, 2004, the functional capacity forms provided by Dr. Twersky list

migraine headaches and chronic headaches as current diagnoses. (Tr. 186). 

In addition to the multiple references to Baker’s headaches and treatment for her

headaches throughout the medical record, Dr. Dougherty’s December 30, 2003 report specifically

lists six physical manifestations of suffering due to Baker’s headaches. First, Baker had to stop

Case 2:05-cv-04385-RK Document 18 Filed 06/21/06 Page 6 of 10
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physical therapy due to the onset of her headaches. (Tr. 211). Second, Baker gets nauseated due

to headache pain fairly regularly. (Id.). Third, on two occasions she has vomited because of her

headaches. (Id.). Fourth and fifth, Baker noted a fear of light and a fear of sound due to her

headaches. (Id.). Finally, Baker notes exertion induces intensification of the pain. (Id.).

Baker also mentioned that she suffered from headaches during her hearing before the

ALJ. (Tr. 296). The Commissioner and the Magistrate Judge’s Report and Recommendation

seize upon Baker’s testimony before the ALJ as the basis for their conclusion that the ALJ did

not fail to consider migraine headaches during the severity determination at step two. Both the

Commissioner and the Magistrate Judge state that Baker testified that headaches were caused by

either her vertigo or her allergies and that these ailments were being treated with nasal spray. In

effect, the Commissioner and the Magistrate Judge state that the ALJ’s consideration of Baker’s

vertigo and allergies encompasses any remaining consideration of Baker’s migraine headaches

thereby obviating the need for the ALJ to separately discuss headaches at step two. I respectfully

disagree due to the ambiguous nature of Baker’s testimony as compared to the medical record. 

The relevant part of the testimony states that: 

Q: And the Judge asked you if you had any problem that might, you know, keep

you from working. When you had the problem, with your ear, did you have

dizziness?

A: Yes.

Q: Do – 

A: Vertigo.

Q: Vertigo?

A: Yes.

Q: And does that still happen to you?

A: Yes, it does. Yes, it does.

Q: And when does that happen to you? Or how often does it happen to you?

A: It happens to me like three, four times, in a week. I get dizzy, get headaches,

pain in my ear, ringing. 

Case 2:05-cv-04385-RK Document 18 Filed 06/21/06 Page 7 of 10
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Q: The doctor does talk about your headaches. The – have you talked to your

doctor about the vertigo, it’s continuing to happen to you?

A: Yes, he say it’s probably because of my allergies. 

Q: He says it’s because of your allergies. Okay, and are you taking any

medication for that? 

A: Singulair. 

(Tr. 295-96). There are two problems with relying on this testimony as substantial evidence to

establish that the ALJ considered migraine headaches at step two. First, as the Magistrate

Judge’s Report and Recommendation notes, “it is unclear whether [Baker’s] testimony concerned

headaches, vertigo, or both.” (See Report and Recommendation at 16, n.18 (Apr. 28, 2006)). 

Second, assuming arguendo that Baker’s testimony supports a finding that her headaches were

caused by either allergies or vertigo, the ALJ had a duty to analyze Baker’s testimony in

conjunction with the other medical evidence regarding her headaches. See Plummer, 186 F.3d at

429 (“The ALJ must consider all the evidence and give some reason for discounting the evidence

she rejects”). For example, Dr. Dougherty opined that Baker’s headaches were most likely

caused by the claimant’s back pain while saying nothing about allergies or vertigo. (Tr. 209). 

This evidence is relevant to determine the severity of Baker’s impairments and the ALJ had a

duty to discuss it in conjunction with Baker’s testimony. 

Due to the multiple references to Baker’s migraine headaches in the medical record, the

ALJ was obligated to discuss migraine headaches at step two of the five-step process. See Reefer

v. Barnhart, 326 F.3d 376, 380-81 (3d Cir. 2003) (“having seen [complaints of headaches and

other maladies] in the medical record, the ALJ was not at liberty to ignore them”). The ALJ,

however, did not set out his reasons for ignoring Baker’s migraine headaches when discussing

which of her impairments were severe enough to significantly limit her ability to work. While it

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2

 Due to the sequential nature of the disability determination process and in the interests of judicial

economy, I shall not address the remaining objections Baker raises as they may be rendered moot. By sustaining

Baker’s first and second objections to the Magistrate Judge’s Report and Recommendation and remanding the case

for reconsideration at step two of the five-step process, the ALJ may have to reconsider steps three through five in

light of Baker’s migraine headaches.

9

may be true that Baker’s migraine headaches may not prevent her from engaging in substantially

gainful activity, it is simply unclear from the ALJ’s opinion and the record whether substantial

evidence supports such a conclusion because the ALJ is silent on the issue. Accordingly, a

remand is required for further proceedings on this issue. Cf. McCormick v. Secretary of Health

& Human Servs., 861 F.2d 998, 1000 (6th Cir. 1988) (discussing remand to develop the record

further as to migraine headaches); Diaz v. Barnhart, No. 01-0525, 2002 WL 32345945, at *7

(E.D. Pa. Mar. 7, 2002). 

IV. CONCLUSION

I cannot conclude that the ALJ’s decision to deny Baker benefits is supported by

substantial evidence in the record. Accordingly, Baker’s Objections to the Magistrate Judge’s

Report and Recommendation are sustained in part2. I will grant in part Baker’s motion for

summary judgment and remand this case to the Commissioner for further proceedings consistent

with this Memorandum. On remand, the ALJ must develop the record as to the severity of

Baker’s migraine headaches. 

An appropriate Order follows. 

Case 2:05-cv-04385-RK Document 18 Filed 06/21/06 Page 9 of 10
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

:

TONYA M. BAKER, : CIVIL ACTION

:

Plaintiff, :

:

v. : No. 05-4385

:

JOANNE B. BARNHART, :

Commissioner of the :

Social Security Administration, :

:

Defendant. :

 :

O R D E R

AND NOW, this 21st day of June, 2006, upon consideration of the parties’ cross motions

for summary judgment, and after careful review of the Report and Recommendation of the

United States Magistrate Judge, it is hereby ORDERED that:

1. Plaintiff’s objections as to the ALJ’s treatment of migraine headaches at Step Two

and an insufficiently developed record are SUSTAINED;

2. the motion of Plaintiff Tonya M. Baker for summary judgment is GRANTED

insofar as she requests a remand; 

3. the motion of Defendant JoAnne B. Barnhart, Commissioner of Social Security,

for summary judgment is DENIED; and 

4. this case is REMANDED to the Commissioner for further proceedings consistent

with this memorandum.

BY THE COURT:

Robert F. Kelly 

Robert F. Kelly Sr. J. 

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